AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2014 (9) TMI 186
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....collection and recovery of differential duty of Rs. 10,04,322/-, Bank Guarantee of Rs. 17,25,000/- and Bond for Rs. 68,00,127/- and direct the same to be null and void, and unauthorized by law; (iii) To issue of writ of mandamus to the Respondents to return the Bond for Rs. 68,00,127/-, Bank Guarantee of Rs. 17,25,000/- and differential duty illegally collected of Rs. 10,04,322/- along with interest to the petitioner; (iv) To issue writ of mandamus to respondent No. 2 not to proceed with any action for adjudication of the impugned illegal notice issued without jurisdiction by Respondent No. 1 which is also barred by limitation and unauthorized by law; (v) To issue writ of mandamus to respondents No. 1, 3 & 4 to ensure that they do not interfere in respect of any case or proceeding including assessment of any Bill of Entry made by the competent jurisdictional Customs authorities and further to restrain respondents No. 1, 3 & 4 from interfering any proceeding or issuing any orders and directions to other officers as no one is subordinate to them and the DRI is not a superior or higher authority to dictate or direct any particular cas....
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....nbsp; The classification of the goods Eucalyptus Oil imported by misdeclaring the same as Eucalyptol CTH 2909 20 00 should not be rejected and reclassified correctly under CTH 3301 29 24. (ii) The goods i.e. 14400 Kgs of Eucalyptus Oil valued at Rs. 68,00,127/- imported under Bill of Entry No. 5563058, dated 26-12-2011 by misdeclaring the same as Eucalyptol which were seized on 9-2-2012 should not be confiscated under the provisions of Section 111(m) of the Customs Act, 1962. (iii) The differential duty of Customs amounting to Rs. 10,04,322/-, as detailed in Annexure A, should not be demanded and recovered from them under Section 28(4) of the Customs Act, 1962. (iv) Interest should not be charged and recovered from them under Section 28AA of the Customs Act, 1962. (v) Penalty should not be imposed upon them under the provisions of Section 114A of the Customs Act, 1962; (vi) Penalty should not be imposed on them under Section 112(a) of the Customs Act, 1962. 23. Shri Sanchit Gupta, Director of M/s. Swati Menthol & Allied Chemicals Ltd., Bareilly Ro....
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....ase of the petitioners is that no DRI authority much less stationed at Ahmedabad would have jurisdiction to issue show cause notice under Section 28 of the Customs Act, 1962 for the goods which were imported at Nhava Sheva port at Raigad. We would principally focus on this latter challenge of the petitioners. 7. In the context of the petitioners' challenge to the impugned show cause notice, the counsel drew our attention to Section 2(34) of the Customs Act, which defines the term "proper officer". Our attention was also drawn to Sections 17, 18 and 28 of the Customs Act where there is reference to the proper officer, who can issue notice and adjudicate on contested issues. 8. Counsel submitted that since respondent No. 1 was not a proper officer in terms of Section 2(34) of the Customs Act, he had no authority to issue notice under Section 28 of the said Act. 9. Heavy reliance was placed on the decision of the Apex Court in the case of Commissioner of Customs v. Sayed Ali reported in 2011 (265) E.L.T. 17 (S.C.) wherein in the context of the definition of proper officer under Section 2(34) of the Customs Act, the Apex Court held and observed that it is only such a ....
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.... to issue show cause notice and adjudicate on the questions of short-levy or non-levy of duty, etc., under Section 28 of the Customs Act. Reliance was placed on the decision of the Apex Court in the case of Union of India v. Ram Narain Bishwanath reported in 1997 (96) E.L.T. 224 to contend that it is only the Customs Authority where the goods are imported would have jurisdiction to adjudicate on the issues connected thereof. 12. Reliance was placed on the decision of the Apex Court, in the case of Raza Textiles Ltd. v. Income-tax Officer, Rampur reported in (1973) 87 ITR 539 to contend that when the jurisdictional fact is lacking the action of the authority of issuing notice and assuming jurisdiction would be rendered invalid. 13. On the other hand, learned counsel Mr. Hriday Buch for the respondents opposed the petition challenging that the show cause notice has been issued by a proper officer, who had been vested with the powers by virtue of series of notifications issued by C.B.E. & C. Our attention was drawn to the affidavit-in-reply filed by Dr. Arvind Kumar, Deputy Director of Revenue Intelligence dated 4-4-2013 in which following averments have been made :- "6.&....
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.... under Section 18, 1t is the proper officer, who may undertake the exercise of provisional assessment and direct the importer to pay difference in duty or furnish security as deemed fit for provisional release of the goods. 18. Section 28 of the Customs Act with which we are directly concerned pertains to recovery of duties not levied or short-levied or erroneously refunded. It provides for a complete mechanism for recovery of duties not levied, short-levied or erroneously refunded or any interest has not been paid, part paid or erroneously refunded, in which case proper officer shall serve a notice on the person chargeable with the duty or interest requiring to show cause why he should not pay the amount specified in the notice. The period of limitation prescribed for issuance of the notice is one year in normal cases and extended period in cases of collusion, wilful misstatement or suppression of facts is 5 years. 19. The question of proper officer, therefore, assumes considerable significance since it is only the proper officer, who under sub-section (1) of Section 28, can issue such a show cause notice. 20. We have noticed that under sub-section (34) of Sectio....
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....dings, the Legislature introduced sub-section (11) to Section 28, which provides as under :- "(11) Notwithstanding anything to the contrary contained in any judgment, decree or order of any Court of law, Tribunal or other authority, all persons appointed as officers of Customs under sub-section (1) of section 4 before the sixth day of July, 2011 shall be deemed to have and always had the power of assessment under Section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section." 23. In the circular dated 23-9-2011 the Board in connection with newly added sub-section (11) of Section 28 clarified as under : ***   ****   *** 2. Further, as a prospective remedial measure, in terms of Section 2(34) of the Act, 1962, the Board issued Notification No. 44/2011-Customs (N.T.), dated 6-7-2011. By virtue of this notification, officers of Directorate General of Revenue Intelligence (DRI), Commissionerates of Customs (Preventive), Directorate General of Central Excise Intelligence (DGCEI) and Central Excise Commissionerates were assigned the functions of the 'proper officer' for the purposes of ....
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....bsp; Appraisers, Examiners, Superintendent Customs (Preventive), Preventive Officers, Women Searchers, Ministerial Officers and Class IV Officers in the Customs Department in any place in India. 2. Superintendents, Inspectors, Women Searchers, Ministerial staff and Class IV staff of Central Excise Department, who are for the time being posted to a Customs port, Customs airport, Land-Customs station, Coastal port, Customs preventive post, Customs Intelligence post or a Customs warehouse. 3. Superintendents, and Inspectors of Central Excise Department in any place in India. 4. All Officers of the Directorate of Revenue Intelligence. 5. All Officers of the Narcotics Control Bureau. 6. All Intelligence Officers of the Central Economic Intelligence Bureau." 27. Under notification dated 7-3-2002, the Government of India appointed officers mentioned in column No. 2 of the table, notification dated 7-3-2002 provided as under :- "S.O. (E). - In exercise of the powers conferred by sub-sectio....
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....f Central Excise, Deputy Commissioners or Assistant Commissioners of Central Excise.                     [F. No. 437/143/2009-Cus.IV]              (Vikas) Under Secretary to the Government of India" 29. Under the notification dated 2-5-2012 the Central Board of Excise and Customs assigned various officers mentioned in Column No. 2 of the Table corresponding functions mentioned in column No. 3 thereof. Relevant portion of the Table reads as under :- Sl. No. Designation of the officers Functions under Section of the Customs Act, 1962 *** *** 4. Deputy Director or Assistant Director in the Directorate General of Revenue Intelligence and Directorate General of Central Excise Intelligence. (i) Section 28B; and (ii) Section 72. *** *** 6. Intelligence Officer in the Directorate General of Revenue Intelligence and Directorate General of Central Excise Intelligence. (i) Section 37; (ii) Section 100; (iii) Section 1....
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....question perhaps would be whether under sub-section (17) of Section 28 despite the decision of the Supreme Court in the case of Sayed Ali (supra), the respondent No. 1 could be considered as a proper officer for the purpose of Section 28. However, it is not necessary for us to examine such question since in our opinion notification dated 6-7-2011 is specific and assigns functions under Sections 17 and 28 to such officer. He is, therefore, the proper officer in terms of Section 2(34) of the Act. Subsequent notification dated 2-5-2012 would not change this position. This is only a further notification assigning further functions to various officers including those under the Directorate of Revenue Intelligence, functions specified in column No. 3 thereof. This notification is not in supersession of the earlier Notification dated 6-7-2011. Both notifications, therefore, co-exist. In other words notification dated 2-5-2012 has not rescinded the earlier notification. Assignment of the functions, under both notifications, therefore, must operate simultaneously. When we hold that under notification dated 6-7-2011 respondent No. 1 was assigned the functions under Sections 17 and 28 of the A....